Some months back, Chief Judge Kozinksi ordered the Administrative Office of US Courts to submit the health-insurance election of a Ninth Circuit employee to the insurance carrier although the employee sought to cover her same-sex spouse; he construed the Defense of Marriage Act as capable of a construction that would permit that course, which was to be preferred to the alternative reading under the principle of constitutional avoidance because, he said, it avoided serious constitutional questions under the Equal Protection Clause. Eugene has blogged on that order.
In the Post today, Joe Davidson has an article entitled “OPM defies order on same-sex benefits” reporting that the Office of Personnel Management, which oversees federal benefits, on Friday told the attorney for the same Ninth Circuit employee that the agency would not implement Judge Kozinski’s order, apparently because of advice received from the Office of Legal Counsel. The article quotes a statement from OPM General Counsel Elaine Kaplan that “OPM must administer the FEHBP [Federal Employees Health Benefits Program] in a lawful manner, and the Department of Justice (DOJ) has advised the OPM that providing those benefits would violate the so-called ‘Defense of Marriage Act.’” That must be OLC; I don’t think there’s another office at DOJ that would give such advice (and in any event, if asked, they’d turn right around and ask for OLC’s views).
As I’ve documented in other posts, the current OLC generally has been fairly timely about publishing its formal opinions on its website fairly soon after an opinion is signed (between one day and three months, which is breakneck speed by historical standards). There’s no such opinion up there yet on the subject; unless we see the opinion up there in the next month or two, it means OLC likely provided the advice informally, typically either orally or by email. That’s not that unusual, although I would normally expect a formal opinion to be issued on such a controversial subject.
To state the obvious (as demonstrated by calling the law the “so-called” DOMA), that is a position that is contrary to the Obama Administration’s policy preferences. I don’t know anything about the merits and so won’t tender a view, but it always heartens the law nerd in me to see people sticking to principle even when it’s unpopular to do so. (I note as an aside that this is not the first time that OLC has given perhaps unexpected advice in this area of the law.) If OLC were going to be overruled by Attorney General Holder (as reputedly happened in with D.C. voting legislation, purportedly based on advice by the Solicitor General’s Office), I suspect it would already have happened.
By the way, OLC alumni will be very familiar with the client agency blaming them when the agency has to dispense unwelcome news.
UPDATE: I’ve poked around a bit, and it looks like the precise timeline went like this. On January 13, 2009, Chief Judge Kozinski issued his original order discussed above. On February 20, 2009, OPM directed the Administrative Office of US Courts not to process the request; a copy of that letter is available here (it’s the exhibit at the last two pages of the document). OPM said it was basing its decision on “Benefits Administration Letter 96-111″ issued on November 15, 1996 (which states in relevant part that DOMA “clarifies that same-sex marriages cannot be recognized for benefit entitlement purposes under . . . FEHB”). Based on that, OPM stated that “Plans in the FEHBP may not provide coverage for domestic partners, or legally married partners of the same sex, even though recognized by state law.”
In response to that, on November 19, 2009, Chief Judge Kozinski issued another order awarding the Ninth Circuit employee, Karen Golinski, backpay to compensate her for the failure to give her insurance, and asserting authority to order OPM to comply. See p. 15575 (“Ordering enrollment is proper and within my jurisdiction because Congress intended this tribunal to be the sole forum for adjudicating complaints of workplace discrimination by employees of the Judiciary. With that responsibility must come power equal to the task.”); id. at 15576 (“OPM . . . may not disregard a coordinate branch’s construction of the laws that apply to its employees.”); id. at 15577-78 (“History reveals that Congress intended the Judiciary to have, like Congress itself, the authority to manage its own personnel and to adjudicate workplace complaints.”). He ordered that:
(3) Within 30 days, the Office of Personnel Management shall rescind its guidance or directive to the Blue Cross and Blue Shield Service Benefit Plan and any other plan that Ms. Golinski’s wife is not eligible to be enrolled as her spouse under the terms of the Federal Employees Health Benefits Program because of her sex or sexual orientation, and that the plans would violate their contracts with OPM by enrolling Ms. Golinski’s wife as a beneficiary.
(4) The Office of Personnel Management shall cease at once its interference with the jurisdiction of this tribunal. Specifically, OPM shall not advise Ms. Golinski’s health plan, the Blue Cross and Blue Shield Service Benefit Plan, that providing coverage for Ms. Golinski’s wife violates DOMA or any other federal law. Nor shall OPM interfere in any way with the delivery of health benefits to Ms. Golinski’s wife on the basis of her sex or sexual orientation.
(Emphasis added.) He ended by stating “I authorize Ms. Golinski to take appropriate action to secure compliance with this order, such as by petition for enforcement or mandamus.”
Even after reading Ms. Kaplan’s statement, it is not completely clear to me at what point OPM sought OLC’s views: After the January 19 order, OPM’s Feb. 20 action, or the November 19 order. OPM’s Kaplan stated “after we learned of this development [which development?], we examined our options and consulted with the DOJ.” Because the Kaplan statement was issued on Friday, December 18, the last weekday before Chief Judge Kozinski’s 30-day deadline was to run, I suspect OPM solicited the OLC advice after the November 19 order. OPM’s statement gives some insight into OLC’s reasoning:
DOJ advised us that the order issued by Judge Kozinski does not supersede our obligation to comply with existing law because it is not binding on OPM, as it was issued in his administrative capacity, and not as a judge in a court case. Thus, this type of order does not change the existing law, which DOJ concludes prevents the enrollment.
On reflection, given the inter-branch conflict at issue here, I have to imagine that OLC issued (or will be issuing) a formal opinion. Watch their website.
By the way, Ed Whelan has blogged a bit on this administrative/judicial distinction in connection with Judge Reinhardt’s analogous order ordering same-sex benefits for Federal Defenders.
Sara says:
The article suggests that the OLC, reviewed but followed a previous Bush OLC opinion. Is there a stare decises type doctrine, with respect to OLC opinions?
December 22, 2009, 9:52 amrjs says:
Kozinski issued two orders. The order “some months back” (January of this year) was the first. When OPM failed to comply with the first, he issued a second far more sternly worded order (last month). HIs language was unusually pointed: “The Office of Personnel Management shall cease at once its interference with the jurisdiction of this tribunal.” In the penultimate sentence of the order, Kozinski told Golinski what to do if OPM continued to interfere: “I authorize Ms. Golinski to take appropriate action to secure compliance with this order, such as by petition for enforcement or mandamus.”
As I read the Post article, OPM is taking the position that Kozinski does not have the power to tell OPM what to do in this context as he’s acting as an administrator, not as a judge.
December 22, 2009, 10:00 amCornellian says:
HIs language was unusually pointed: “The Office of Personnel Management shall cease at once its interference with the jurisdiction of this tribunal.” In the penultimate sentence of the order, Kozinski told Golinski what to do if OPM continued to interfere: “I authorize Ms. Golinski to take appropriate action to secure compliance with this order, such as by petition for enforcement or mandamus.”
As I read the Post article, OPM is taking the position that Kozinski does not have the power to tell OPM what to do in this context as he’s acting as an administrator, not as a judge.
I love these intergovernmental dustups. No one’s really sure who can do what, or who gets to weigh in with an opinion.
December 22, 2009, 10:23 amSara says:
Since the order was evidently not mandamus, than the judgment did not effectively order OPM to do anything.
December 22, 2009, 10:35 amSean M. says:
The question is what happens if Golinski does sue for a writ of mandamus to compel OPM to comply. Presumably, the Ninth Circuit will stick to its guns. If that happens, I doubt the Obama DOJ will seek cert and force the issue to the Supreme Court — assuming the Supreme Court would even take the case. If that’s the likely outcome, why start down that path at all? Why not just acquiesce in this case, but not acquiesce as a matter of general policy? Administrative agencies do this all the time — I will follow your order, Court, in this case, but we will not adopt it as the policy of our agency and we will reserve the right to maintain our position to the contrary in front of other courts — or, indeed, in front of this same court.
I doubt there are many other Ninth Circuit employees in the same position as this woman and the public defender referenced in the other court. And in the other states that have legalized gay marriage, OPM may get a more congenial panel to their arguments.
December 22, 2009, 10:47 amRandy says:
How exactly does issuing same sex health benefits violate DOMA? Health benefits do not equal marriage anywhere in the US, so to me it seems rather a stretch. If Judge Kozinski doesn’t see a conflict, I would love to know where the OLC sees it.
December 22, 2009, 10:50 amCalderon says:
My understanding is that OLC does gives its prior opinions stare decisis effect, and cites to its old opinions and analogizes to them in writing new opinions similar to the way a court would cite to its prior opinions. Of course, nothing in OLC’s opinions is binding on the courts, and they may not even treat those opinions as persuasive authority.
December 22, 2009, 11:00 amShelbyC says:
Well, the employee wants health benefits issued to her spouse, not just anybody of the same sex, right? In order to do that, wouldn’t the AO have to recognize the marriage?
December 22, 2009, 11:01 amDavid Nieporent says:
OPM doesn’t have the authority to “issue health benefits” to random people, but only to spouses (yes, and minor children, obviously). Under DOMA, this person isn’t a spouse.
IOW, the issue isn’t that “health benefits equal marriage,” but that health benefits (in this instance) stem from marriage.
December 22, 2009, 11:15 amSara says:
Thanks Calderon.
December 22, 2009, 11:17 amJay says:
“Of course, nothing in OLC’s opinions is binding on the courts, and they may not even treat those opinions as persuasive authority.”
What does that mean? Even if they’re persuaded by an OLC opinion, they have to do the opposite? Huh?
December 22, 2009, 11:38 amrjs says:
In Kozinski’s first order, he interpreted the Federal Employee Health Benefits Act (FEHBA) not to limit OPM’s authority to contract with private insurers, but to set a “minimum statutory requirement.” In other words, OPM must contract for a plan that covers spouses under federal law, but nothing prohibits OPM from contracting for a plan that covers spouses under state law, even if the relationship is not recognized by the federal government. In this way, Kozinski avoided the “difficult constitutional issues.” He then launched into a hypothetical inquiry into the constitutionality of DOMA that I found clever and amusing (“if I were to do this” and “if I were to do that”). Ultimately, he avoided ruling on the constitutionality of DOMA by adopting his construction of the FEHBA as permitting the coverage of same-sex spouses.
December 22, 2009, 11:42 amJay says:
There was another personnel case decided at around the same time by Reinhardt that did reach the constitutional issue, and found DOMA unconstitutional. I’m not sure what’s happened with that since.
December 22, 2009, 12:05 pmParenthetical says:
That’s not my reading of the situation. Here, Kozinski was sitting as an administrative judge in an tribunal that’s the judiciary’s version of the Merit Systems Protection Board (used by executive branch employees when there is a workplace grievance). The MSPB is clearly an Artilce I tribunal and it’s orders are binding on the relevant agency. Indeed there is some legislative language (regarding the predecessor process to the one Kozinski was overseeing) that Congress intended for this process to afford all the remedies that the MSPB possesses. So, this clearly wasn’t a writ from a Article III court, but it sure looks like an order from an Article I court duly empowered to issue this remedy.
That’s why I find it so offensive that the administration refuses to participate in this process. Instead they just keep shouting that they’re right (which they probably are as to the statutory construction), and nobody but an Article III court can tell them what to do (which I don’t see any basis for). Seriously, would they maintain this position if this was an MSPB ruling?
Reinhardt issued a subsequent order last month (same day as the Golinski II order) in which he awarded back pay plus ongoing money damages to Levenson. If the OPM finally allows the coverage for Levenson’s husband, then the ongoing payments stop.
December 22, 2009, 12:28 pmrjs says:
In his first order, Reinhardt ordered the AO to submit Levenson’s election form to “the appropriate health insurance carrier” and to add Levenson’s spouse as a beneficiary. Just like in Golinski, the OPM refused to comply with the order. So, Levenson came back to Reinhardt and asked for alternative forms of relief, one of which was compensation (Levenson specifically did not ask that Reinhardt “take any action against OPM”). In his second order, Reinhardt remanded the matter to the FPD to compute the compensation both retrospectively and prospectively.
December 22, 2009, 12:31 pmJay says:
OK, that makes sense. I actually thought that it was an order by Judge Reinhardt that was the more recent one I had read, but assumed I was mistaken when people started talking about Kozinski issuing a recent order. I guess they’re coordinating their efforts.
December 22, 2009, 1:20 pmJay says:
On another note, I wonder how this scenario would play out on a circuit other than the Ninth, where a single judge acted in a way clearly contrary to the majority on that COA’s view of the issue. Say, Judge Barkett on the 11th Circuit ordering OPM to pay benefits to the same-sex spouse of a FPD (married in CA) in Alabama.
December 22, 2009, 1:21 pmOrin Kerr says:
Am I alone in finding it odd that these administrative orders are then published in the F.3d? I assume the judges make the decision to submit the order to West for publication. If so, it strikes me as pretty odd: They are not judicial decisions.
December 22, 2009, 1:24 pmOrin Kerr says:
Parenthetical,
Interesting, although if an Article III court sets up a tribunal modeled after an Article I tribunal, does the fact that it sort of resembles an Article I tribunal actually make it an Article I tribunal? I have a hard time seeing how that could be the case. For example, if my law school sets up a similar tribunal, modeled after an Article I tribunal, presumably we would say it has no authority at all because it is not actually an Article I tribunal: What matters is what the tribunal is, not what it looks like.
In particular, it would be weird if the Ninth Circuit could set up a tribunal that looks like an Article I tribunal and then be considered an Article I decisionmaker who can set the rules for the Executive Branch. Whatever power the Ninth Circuit judges have, it is only power under Article III, not Article I: It would be weird if judges could just hop from branch to branch at their own will.
Well, maybe not weird for the Ninth Circuit, but weird for the rest of us.
December 22, 2009, 1:30 pmDave N. says:
I find it odd, too. Off topic but related to your post, is that how decisions end up in the F.Supp.? I have always wondered.
December 22, 2009, 1:34 pmOLC In The News–Same-Sex Benefits | Liberal Whoppers says:
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December 22, 2009, 1:44 pmAlaska Employment Law says:
[...] John Elwood at Volokh Conspiracy has more on the administrative orders by Judges Kozinski and Reinhardt directing OPM to provide benefits to the same-sex partners of 9th Circuit employees, a topic mentioned here earlier. The Obama Administration has apparently decided to fight the orders. [...]
December 22, 2009, 1:47 pmtroll_dc2 says:
Judges decide what to publish, but West can request publication of a decision if the court had not sent it in originally and West found out about it (for example, if it was cited in another decision or if it was published by another law publisher). A lot of courts put all or most of their decisions on the Internet, and the vast majority of these rulings will wind up in Westlaw, but the courts decide what to publish in F.Supp. and F.R.D. That is why a judge may issue five opinions in a case but you find only two of them in print.
Those publications now print vastly more decisions than they used to, but it is still a small percentage of what is out there. A lot of judges refuse to publish at all, or they release their opinions only after an appellate challenge to them fails. On the other hand, there are judges who overpublish.
I have found that publication is not necessarily related to importance or novelty. You would be amazed at the number of important rulings that do not get into F.Supp.
There is at least one current federal judge clerk who read this blog. It would be interesting if he commented on this matter.
December 22, 2009, 1:53 pmOrin Kerr says:
Dave N,
My understanding is that with the F. Supp., it’s up to the judges: They send in what they think is worth publishing. Although I gather there are lot of folks here who would know with more certainty than I.
December 22, 2009, 1:54 pmOrin Kerr says:
Thanks, Troll! Very helpful.
Oh, and if there are any former clerks who want to say more, please feel free to post it or send me an e-mail: this would be a really interesting “main” post, I think.
December 22, 2009, 1:56 pmParenthetical says:
Hi, Orin.
The history of the EDR Plan (under which Kozinski acted) is a bit convoluted. Here are the most salient features that I believe give rise to what seems like the statutory authority of an Article I tribunal.
Administrative Office of the United State Courts Personnel Act of 1990 (Pub.L. 101-474)
Here, Congress placed the judiciary’s employees outside the scope of the Civil Service Reform Act of 1978. That act, as amended, created a comprehensive scheme for resolving workplace disputes for federal employees, including organs such as the Office of Personnel Management, the Merit Systems Protection Board and the EEOC.
But in section 3(g), Congress asserted that its intention was not to leave judiciary employees without rights and concomitant remedies. Rather:
Congressional Accountability Act of 1995 (Pub.L. 104-1)
Here, Congress created the Office of Compliance through which legislative employees would finally have recourse to enforce the rights other federal employees enjoyed. It also ordered the Judicial Council to report on how the judiciary employees were covered under the big name workplace protection acts that the CAA extended to legislative employees (the CAA defined in detail which statutes were involved).
The subsequent report by the Judicial Council included a model plan for a new process (the EDR Plan under which Kozinski acted). Congress held hearings on that plan, which included discussion of any further enabling legislation that might be required to afford judicial employees the rights and remedies of other federal employees. Neither the Judicial Council nor Congress believed that any further legislation was necessary. (Read into that what you will.) All of the Circuit Judicial Councils subsequently adopted the model plan (with some trivial adaptations to local practices).
In sum, the EDR Plan is more than creature of some agency’s liking. Its processes seem to be well imbued with a Congressional intent (and some explicit language empowering the Administrative Office with the same powers as the executive branch tribunals) that the plan be sole avenue through which judiciary employees can vindicate certain workplace rights. As Kozinski opined, that necessarily includes remedies when warranted.
December 22, 2009, 1:57 pmOrin Kerr says:
Thanks, Parenthetical! Wow, that’s extremely helpful.
Can Congress just assign those powers to another branch like that? I wonder if that raises problems under Bowsher v. Synar, 478 U.S. 714 (1986), because it tries to gives a power to a branch of government that the branch isn’t supposed to have. (In Bowsher, giving Congress executive powers; in this case, giving the judiciary executive powers.) Just a thought — I don’t know this area well enough to know.
December 22, 2009, 2:05 pmG.R. says:
Interesting. Just thinking out loud here: aren’t the functions at issue adjudicative or quasi-judicial functions? And if so, isn’t it odd to say that it could violate the separation of powers to assign them to a court? If there’s a separation problem, it would lie in the creation of the Article I tribunal in the first place, because Congress is giving to the executive case-deciding powers that look pretty judicial. (But we know that there’s no such problem actually raised by the MSPB, see Crowell v. Benson IIRC.) It’s hard for me to see at first glance how carving a little piece of that back and giving it to Judge Kozinski would create a constitutional problem.
December 22, 2009, 2:37 pmDavid Schwartz says:
If Congress is going to create a forum as a sole remedy for alleged constitutional violations, it had better be a Judicial forum.
December 22, 2009, 3:09 pmParenthetical Greg says:
There may be fatal defects in constituting this tribunal. Surviving that, Kozinski may have overlooked defects in the particular remedy he crafted (which Reinhardt deliberately avoided). You probably know this area of the law better than I, so I’ll leave it at that.
What I find terribly frustrating, however, is that the administration (in transition) obviously concluded in February that some combination of defects existed in the EDR Plan’s authority. So, why do we get nothing more than “Kozinski is an administrator.” That’s conclusory. That the OPM intervened without a comprehensive public rationale in February is excusable. But in December, it’s just arrogant.
December 22, 2009, 3:21 pmrjs says:
The forum is for challenging employment discrimination, not constitutional violations.
December 22, 2009, 3:28 pmDavid Schwartz says:
This type of employment discrimination, when committed by the government, is a constitutional violation.
Or do you think it would be constitutional for the government to have “white’s only” positions? Or to advertise a position with one salary for men and a different one for women?
December 22, 2009, 3:39 pmrjs says:
Parenthetical,
Some of your post about the history of the EDR plans seems right to me. However, I don’t think the quote about employees of the AO pertains to all judicial employees, but only to employees working in the AO (the name of the act is the Administrative Office of the United States Court Personnel Act of 1990). Take a look at Allen v. Mecham, 2006 WL 2714926 (D.D.C. 2006) for a description of the procedures. Kozinski commented on this as well in footnote 6 of the first Golinski order:
“Take, for example, the Administrative Office of the United States Courts Personnel Act of 1990, Pub.L. 101-474, 104 Stat. 1097. The accompanying report by the House noted that the AO was, at the time of the act, “to a large extent … subject to the control of the executive branch in personnel matters.” H.R. Rep. 101-770(I), at 6 (1990), reprinted in 1990 U.S.C.C.A.N. 1709, 1710. In contrast, “[t]he United States courts, which [the AO] serves, … are mostly free of such Executive Branch supervision.” Id. In order to correct that asymmetry, Congress determined that the “authority granted under such law to the Equal Employment Opportunity Commission (EEOC), the Office of Personnel Management (OPM), the Merit System Protection Board (MSPB), or any other agency in the executive branch, shall be exercised by the Administrative Office.” Id. at 1712. No mention of such a power for the courts was necessary. Our authority, part statutory and part inherent, to control matters that touch on the operation of the courts was recognized long before those agencies existed.”
You might also want to read Dotson v. Griesa, 398 F.3d 156 (2d Cir. 2005). It has a very long and detailed history of what Congress has done (and not done) and what the Judicial Conference has done with respect to judicial employees and employment discrimination.
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December 22, 2009, 4:08 pmrjs says:
Challenges to employement discrimination are generally statutory. Many forms of discrimination, which are prohibited in employment, are not mentioned in the constitution, e.g., gender, disability, age. In addition, the judicial EDR plan prohibits discrimination based on sexual orientation, which, last I looked, wasn’t in the constitution or even in federal statutes (too bad).
December 22, 2009, 4:24 pmMike says:
Kozinski issued an order today, presumably in response to the WaPo article and OPM’s response. My read is that Judge Kozinski is not pleased with OPM. He notes that his order is final. He also states: “I authorize Ms. Golinski to take what further action she deems fit against any entity [without awaiting the result of a related appeal not involving OPM].”
December 22, 2009, 4:37 pmShelbyC says:
Or one salary for married folks and a different one for single folks?
December 22, 2009, 4:45 pmrjs says:
JE: “On February 20, 2009, OPM directed the Administrative Office of US Courts not to process the request.”
In the spirit of nit-picking, the OPM directed the insurance carriers not to “accept” the forms submitted to them by the AO.
December 22, 2009, 4:46 pmrjs says:
Orin: “Can Congress just assign those powers to another branch like that?”
As I understand it, Congress didn’t assign powers to the judicial branch. Congress chose not to legislate certain employment protections for judicial employees because of the judiciary’s efforts to do so on its own.
December 22, 2009, 4:55 pmParenthetical Greg says:
My reference to the plan’s “convoluted” history may have been an understatement. I don’t pretend to recall all of the relevant 40+ years of history behind it. (Heck, I don’t remember most of it.)
Your note about who was covered by the AOUSC Personnel Act of 1990 is an apt illustration. I think it’s abundantly clear that in Reihnhardt’s rulings on the Levenson dispute, that’s a perfectly apt authority. Levenson is a federal PD. That office is clearly part of the AOUSC. The authority should acrue to resolve that claim.
While the same EDR plan covers Golinski, her standing is a presumably a little different. It is the Director of the AOUSC’s decision of which Golinski complains. But is Golinski an employee of the AOUSC? (I presume not, but I’m not at all certain.)
Taken as a whole, there is a colorable–if less than crystal clear–claim that the judiciary has some adjudicative power here, including at least some equitable relief that intersects with the executive-branch duties. Some line drawing needs to occur between the authority (inherent and/or statutory) of the judicial branch to conduct its business and the executive branch, which provisions practically all of the critical infrastructure of the courts (GSA, Justice, Treasury, etc.).
Perhaps Kozinski catapulted over those lines, as Ed Whelan apparently concludes. That’s not all clear to me. Conversely, Kozinski’s authority to compel this result isn’t a slam dunk either.
Absent some substantive explanation from the OLC, I can’t tell what the administration’s position is. Can Levenson get a check from Treasury as Rienhardt ordered? I’m guessing not.
December 22, 2009, 5:27 pmrjs says:
Heh, I don’t see anything unconstitutional about that. But on a lighter note, I remember an episode from the Mary Tyler Moore Show in which Mary asks Lou for a raise because her male predecessor had been making more money than Mary. Lou tells Mary that the former producer made more because he was a man and had a family to support, whereas Mary was a woman and single. At first defeated, Mary leaves Lou’s office but then comes charging back in, saying something like, “By your logic a person with 3 kids should be paid more than a person with 2 kids.” Lou’s response was to run out of the office. At the end of the episode, Lou capitulates and gives Mary a raise. Good thing, too, otherwise, she’d have to sue. The name of the episode is “Good-Time News.”
December 22, 2009, 5:36 pmRandy says:
David: “OPM doesn’t have the authority to “issue health benefits” to random people, but only to spouses (yes, and minor children, obviously). Under DOMA, this person isn’t a spouse.
IOW, the issue isn’t that “health benefits equal marriage,” but that health benefits (in this instance) stem from marriage.
”
Presumably, this was argued before Judge Kozinski, and he doesn’t buy it. Now, he may be wrong on this, but wouldn’t the appropriate action be to appeal the decision? When does the government, or for that matter, anyone, get to ignore a decision just because they figured out it’s wrong?
Perhaps I’m missing something here (and I admit I don’t have all the facts or the legal grounding in these issues), but this sort of thing surely can’t have never come up before. If it’s a question of whether Kozinski has standing to issue an order, then that should have been decided some time before. If not, then appeal it.
“What I find terribly frustrating, however, is that the administration (in transition) obviously concluded in February that some combination of defects existed in the EDR Plan’s authority. So, why do we get nothing more than “Kozinski is an administrator.” That’s conclusory. That the OPM intervened without a comprehensive public rationale in February is excusable. But in December, it’s just arrogant.”
Seems so. Again, it sets a dangerous precedent in itself for a government (or more precisely, the Executive branch) to just ignore a ruling because it doesn’t feel bound by it.
Question: Had the judge ruled the other way, that OPM should NOT issue health benefits, would the DOJ still ignore the ruling? Would they still say they are not bound by it? THAT wouldn’t make any sense at all, but the ruling would be for the status quo, ie, no benefits to the complainant. Or would they actually do a silly thing and issue the benefits just to prove that they can indeed ignore the judge’s ruling?
Did the DOJ really fail to anticipate this very scenario in their briefs and arguments? If so, my respect for these people has plummeted.
At this point, I have no idea what the Obama adminstration stands for or what their legal philosophy is, or if they even understand basic legal principles. What legal eagles did this guy bring on?
December 22, 2009, 6:18 pm2008-09 Fed Clerk says:
The “decision” process appears to be just a checkbox on CM/ECF that designates whether a document you’re filing electronically is a decision that falls under the E-Government Act. If you check that box, West tends to pick it up (assuming that CM/ECF doesn’t have some overriding privacy protection for that type of case, as some courts have set with Social Security cases). If you don’t check that box, West tends not to pick it up.
I’m sure that some judges put thought into whether or not to check that box, but most don’t from what I saw while I was clerking. Many judges don’t even docket their own decisions, leaving that to clerks, courtroom deputies, or the court clerk’s office.
December 22, 2009, 6:30 pmrjs says:
Levenson is not part of the AO in the sense that he is not an employee of the AO. Although part of the judicial branch, the judiciary is sort of the AO’s client – it’s very confusing. See http://www.uscourts.gov/adminoff.html. As I said, the AO has its own plan for its own employees.
Apparently, the federal public defenders in the 9th circuit have their own EDR plan (see Reinhardt’s first Levenson decision), although it is probably similar to the various judicial EDR plans (I haven’t seen it). Golinski is a staff attorney for the 9th Circuit and is therefore covered by the 9th Circuit’s EDR plan (which I can’t find anywhere on the 9th circuit’s websites).
I agree wholeheartedly that the history is convoluted.
December 22, 2009, 7:32 pmrjs says:
Are you talking about West’s hard copy reporters only or their entire database? What part of the E-Government Act?
December 22, 2009, 7:41 pmParenthetical says:
You may well be right. I believed based on both statutes (which may no longer be relevant) and various non-controlling descriptions that the Office of Defender Services (which is who I believe employs public defenders) is an office within the AOUSC. That’s why I was struggling with the distinction between Golinski (staff attorney for the court proper) and Levenson (FPD).
In any event, I concede it’s unclear (which I why I’ve peppered my comments with “seems like” etc.
December 22, 2009, 8:32 pmRich Rostrom says:
John Elwood: “sticking to principle even when it’s unpopular…”
Unpopular with whom?
Are you saluting OLC for defying the present fashion among the legal/political/intellectual elite for same-sex marriage and homosexual rights generally?
Because the DOMA is popular (and same-sex marriage unpopular) among the general population. (Vide the results of numerous referendum votes.)
Thus it seems you see OLC taking the side of the unwashed masses against the elite – and consider this a commendable act of principle, even of courage.
That’s a remarkable view of today’s American society: that such inner elite consensuses exist, and it requires stern principle to oppose them, even when the letter of the law and general public sentiment are the other way.
December 22, 2009, 9:01 pmptt says:
Randy:
Well, they do seem to be making a point of following the law even when they supposedly don’t like it. A refreshing about face from the previous administration. Though it is darned annoying, as I was sort of getting used to the fly-by-the-pants approach.
I also think they’re trying to build a strong case that DOMA really is discriminatory. Finding administrative ways around DOMA and other anti-gay regulations weakens the argument that those laws need to be repealed.
December 22, 2009, 9:30 pmptt says:
You’re ignoring pretty widespread support for civil unions and domestic partnerships. Most Americans do think it’s unfair that gay people can’t get spousal health insurance. And enough with the tedious “elites” stuff. It’s just silly.
December 22, 2009, 9:33 pmRandy says:
ptt: “I also think they’re trying to build a strong case that DOMA really is discriminatory. Finding administrative ways around DOMA and other anti-gay regulations weakens the argument that those laws need to be repealed.”
Well, I hadn’t thought of that. It’s a possibility, but that should have at least shared this sort of thing with organizations like Lambda Legal, which blasted them for their actions.
Rich: “Unpopular with whom?”
Providing health care benefits to same sex couples is supported by a majority of Americans. What’s amazing is that you would think that most Americans are anti-gay in general. They aren’t — they might have mixed feelings on specific issues, but to divide all Americans into two camps, one pro-gay and one anti-gay, and one elite and the other ‘the masses’ is not only simplistic but inaccurate.
December 22, 2009, 10:32 pmDave Hardy says:
Reminds me of a case I had at Interior, decades ago. Justice had sent out instructions to be incredibly hard-assed about FOIA fee waivers. So Interior did so, and got sued. Whereupon Justice, defending us, caved immediately. Their explanation amounted to “we didn’t think anyone would actually do follow our instructions.”
December 23, 2009, 12:39 am2008-09 Fed Clerk says:
I’m talking about their entire database. I even tested this with cases where the decision itself was clearly marked “Not For Publication”–if I checked the box, West picked it up into their database. If I didn’t check the box, West didn’t pick it up, regardless of how the opinion was actually marked. I could not find any rhyme or reason for when it got added to the hard copy reporter, at least via CM/ECF.
The E-Government Act appears to have nothing to do with it, though. That’s just how the checkbox in CM/ECF is labelled.
December 23, 2009, 8:42 amRobert Clark says:
Defying a court order without even appealing it hardly evinces a tender solicitude for the rule of law. If they thought they were legally right, they should have appealed the decision.
December 23, 2009, 4:46 pm